Big Win for Husbands in South Africa
Arisha Rajaram
A provision of the Births and Deaths Registration Act 51 of 1992 (the Act), which prohibited a woman’s husband from adopting her surname upon marriage, has been deemed discriminatory based on gender. Husbands in South Africa can now legally take on their wife’s surname.
Facts of the case
In the case of J.J and Others v Minister of Home Affairs and Another (3626/2024) [2024] ZAFSHC 286, the Court had to deal with whether Section 26(1)(a) – (c) of the Act and Regulation 18(2)(a) of the associated regulations is unconstitutional as they discriminate on the grounds of gender.
Both Applicants in this matter intended to adopt their respective wive’s surnames, however, at the date of marriage were unable to do so as the Department of Home Affairs system did not allow such change.
Relief Sought
The applicants sought the following:
- Declaration of Unconstitutionality: The applicants argued that the Act’s provisions fail to allow a husband to assume his wife’s surname or to change surnames without seeking the Director-General’s permission. This creates a discriminatory framework that privileges women while restricting men’s choices.
- Specific Changes: They requested that the court allow the first applicant to retain her surname and the second applicant to adopt it, as well as similar adjustments for the third and fourth applicants.
- Suspension of Declaration: A 24-month suspension of the declaration of invalidity to permit legislative amendments by the President and Parliament.
- Referral to Constitutional Court: The applicants requested that any order granted be referred to the Constitutional Court for confirmation of its constitutional validity.
Court Proceedings
The court noted the Applicants’ arguments regarding the perpetuation of patriarchal norms and the resultant gender inequality entrenched in the existing law. During the proceedings, the Respondents did not oppose the application.
Conclusion
The case highlights the need for legislative reform to align surname adoption practices with contemporary values of gender equality and individual rights. This case underscores the ongoing legal and societal challenges regarding gender equality in marital name practices, prompting a critical examination of existing statutes that reinforce traditional gender roles.
Article Disclaimer
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
